botswana/namibia - Cour international de Justice

Secondly: the Namibian Government relies upon a scientific criterion for the determination of
the main channel which is eccentric in the extreme and which, more significantly, could not
have been present to the minds of the statesmen concerned in the negotiation of the 1890
Agreement.
Thirdly: the Namibian Government offers the Court a theory which would seriously erode the
function of the 1890 Agreement in constituting a boundary and which provides the basis for
submissions which are incompatible with the Special Agreement.
(ii) The Major Emphasis is upon Title by Prescription
134. The Memorial of Namibia devotes less than five pages to the actual text of the
Agreement of 1890 (pp.45-9). The major proportion of the pleading is devoted to the
development of a case based upon prescription (pp.59-139). The relevant section of the
Namibian Memorial, Part Two, is entitled: 'The Subsequent Conduct of the Parties to the
Anglo-German Treaty of 1890 and Their Successors in Title with Relation to Kasikili Island'
(p.59). However, this heading does not reflect the real substance of the argument pursued in
Part Two of the Namibian Memorial.
135. The text is in fact entirely frank about the direction to be taken. Thus the introduction to
Chapter 1 of Part Two sets the tone:
"The subsequent conduct of the parties to the Treaty set forth below is relevant to the present
controversy in three distinct ways. In the first place, it corroborates the interpretation of the
Treaty developed in Part One. Second, it gives rise to a second and entirely independent basis
for Namibia's claim under the doctrines concerning acquisition of territory by prescription,
acquiescence and recognition. Finally, the conduct of the parties shows that Namibia was in
possession of the Island at the time of termination of colonial rule, a fact that is pertinent to
the application of the principle of uti possidetis". (emphasis supplied). (Memorial, p.60, para.
165).
136. The introduction to the second section of this chapter is no less emphatic:
"The conduct of the parties for the century after 1890 establishes that Namibia is entitled to
sovereignty over Kasikili Island by operation of the doctrines of prescription, acquiescence
and recognition, entirely independently of its treaty-based claim. Although much scholarly
analysis has gone into developing distinctions between these three sets of doctrines, the
fundamental elements relevant to all three are the facts that will be established in the
succeeding chapters of this Part of the Memorial: (1) continuous, open and notorious
occupation and use of the territory in question over a long period of time; (2) exercise of
sovereignty in the territory; and (3) failure of the other party, having knowledge of these facts,
to object, protest or assert its rights." (emphasis supplied). (Memorial, p.66, para. 180).
137. The opening passages of Chapter IV of the Memorial provide further illumination:
"251. As noted in Chapter I of this Part, acquiescence is an essential element - some would
say the essential element - in the acquisition of prescriptive title. As Johnson says, 'the
essence of prescription is the acquiescence, express or implied, of the one state in the adverse
possession of the other.' Indeed, Brownlie seems to conclude that all of the other requirements
are subsumed under that of acquiescence.